The panel filed (1) an order withdrawing an opinion filed November 23, 2020 (previously amended on December 11, 2020); and (2) an amended opinion reversing the district court’s application of a recidivist sentencing enhancement under U.S.S.G. § 4B1.2(b), and remanding for resentencing, in a case in which the defendant was convicted of possession of ammunition by a convicted felon in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2).
The district court applied the enhancement on the ground that the defendant’s prior state conviction for attempted transportation of marijuana under Arizona Revised Statutes § 13-3405(A)(4) qualified as a “controlled substance offense.”
The Arizona statute under which the defendant was convicted included hemp in its definition of marijuana. In 2018, before the defendant’s federal conviction, Congress amended the Controlled Substances Act to exclude hemp from its definition of a controlled substance. Reviewing for plain error, the panel held that because the federal Controlled Substances Act in effect at the time of the defendant’s federal sentencing excluded hemp, the defendant’s Arizona conviction is facially overbroad and not a categorical match. The panel held that the district court therefore plainly erred in applying the § 4B1.2(b) enhancement. The panel concluded that the error affected the defendant’s substantial rights, and if uncorrected would seriously affect the fairness, integrity, or public reputation of judicial proceedings.
If you have California state marijuana convictions, you need to check the definition used in those statutes. In many respects, California used to use the same definition of marijuana as Arizona.
Full Opinion here: UNITED STATES V. BAUTISTA, http://cdn.ca9.uscourts.gov/datastore/opinions/2021/02/26/19-10448.pdf
Anton Vialtsin, Esq.
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